The Framework of Environmental Law

A New Administration Can Change Policies, But Not That Quickly

The United States experienced an “environmental moment” in the 1970s, soon after the Cuyahoga River in Ohio caught fire and during a time Republicans and Democrats actually came together in some shared goals.

Pivotal laws were enacted, the U.S. Environmental Protection Agency was created and public consciousness began to change.

But that moment passed, and “since then, we have done almost nothing,” said David Uhlmann, a law professor at the University of Michigan and former head of the U.S. Department of Justice Environmental Crime Section.

In an overview for National Press Foundation fellows, Uhlmann described the framework of environmental laws that was erected in the 1970s and updated some in the 1980s. In 2017, however, the EPA could face a severe retrenchment, given the budgetary and policy preferences of President Donald Trump.

But Uhlmann pointed out that many of those environmental tools developed in the 1970s – as “creaky” as they are today – will likely survive the lengthy rulemaking process opponents would need to use to get rid of them.

Because of the framework built in the 1970s, it’s not possible for the administration to change them unilaterally; actions the president is intending to take might drag out four three or four years – meaning the elections of 2018 and 2020 could derail his efforts to derail Obama’s efforts.

“The law is inherently conservative and therefore slow to change,” he said.

Uhlmann detailed the key environmental issues the current administration is tackling, including rollback of the Clean Power Plan and the Waters of the U.S. rule, both key initiatives by former President Barack Obama.

“We come into the Trump administration behind the eight ball,” he said. “Right now, the best-case scenario is that we’re going to stand still or see some minor slippage – and at a time we need rapid improvement.”

Uhlmann also led fellows through the mechanics of environmental enforcement, a responsibility shared between the EPA and Department of Justice. He said that Trump may be different than previous Republican presidents and try to politicize enforcement, but the more likely outcome is that environmental crimes will continue to be prosecuted on a nonpartisan basis.